Case T-459/08: Action brought on 6 October 2008 — EuroChem MCC v Council
Date: 2008-10-06
Institutions: Court of First Instance
Subjects: Council of the European Union, Russia, action for annulment (EU), anti-dumping duty, chemical compound, import, infringement of EU law

20.12.2008

EN

Official Journal of the European Union

C 327/37

Pleas in law and main arguments

The applicants object to the findings in the first part of Article 1
of Commission Decision C(2008) 3512 final of 23 July 2008
Measure No C48/2006 (ex N227/2006) Germany DHL and
Leipzig Halle Airport that the capital contributions granted by
Germany to Leipzig/Halle airport represent State aid to the
airport and that that aid amounts to EUR 350 million.

The applicants rely on eight pleas in law in support of their
claims:

First, the applicants submit that the rules on State aid are not
even applicable because the airport is not an undertaking within
the meaning of those rules, so far as the expansion of regional
airport infrastructure is concerned.

Second, Flughafen Leipzig/Halle GmbH is a State-owned single
purpose vehicle with an organisational structure governed by
private law which, accordingly, as is generally acknowledged,
cannot be deemed to be a recipient of aid in so far as the State
provides it with the resources required in order to perform its
functions.

Third, the contested decision is inherently contradictory, in that
Flughafen Leipzig/Halle GmbH is simultaneously treated in the
decision both as recipient and donor of aid.

and, as a result of this expanded interpretation, making proce-
dures which are within the administrative competence of
national authorities subject to review by the Community institu-
tions.

Finally, the contested decision is inherently contradictory and
infringes the obligation to state reasons in accordance with
Article 253 EC.

(1) Communication from the Commission — Community Guidelines on
financing of airports and start-up aid to airlines departing from
regional airports, OJ 2005 C 312, p. 1.

(2) Communication from the Commission — Application of Articles 92
and 93 of the EC Treaty and Article 61 of the EEA Agreement to
State aids in the aviation sector, OJ 1994 C 350, p. 7.

(3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty.

Action brought on 6 October 2008 — EuroChem MCC v
Council

(Case T-459/08)

(2008/C 327/66)

Language of the case: English

Fourth, the application of the guidelines published in 2005 (1)
to facts which obtained before the guidelines were published is
contrary to the prohibition on retroactivity, the requirement of
legal certainty, the protection of legitimate expectations and the
principle of equality. In the applicant's view, only the Commis-
sion's 1994 guidelines (2) were applicable.

Parties

In addition, the applicants state that the new guidelines are
contrary to primary Community law, being factually inapplic-
able and inherently contradictory where regional airport opera-
tors do not have the status of an undertaking. The 2005 guide-
lines also made the construction of airports subject to the rules
on aid, whereas, in the previous guidelines of 1994, this activity
was expressly excluded from the application of the State aid
the
rules.
the diametrically opposed content of
old and the new guidelines, and the non-revocation of
the
1994 provisions, it is unclear how the financing of airport infra-
structure is intended to be legally assessed.

In view of

Applicants: EuroChem Mineral and Chemical Company OAO
(EuroChem MCC) (Moscow, Russia), (represented by: P. Vander
Schueren and B. Evtimov, lawyers)

Defendant: Council of the European Union

Form of order sought

the

applicants

Sixth,
the Commission has
committed a breach of procedure since it failed to apply the
provisions of Regulation No 659/1999 (3) on existing aid to the
capital contributions which it deemed to be aid.

submit

that

Seventh, the 2005 guidelines also circumvent the division of
powers between the Member States and the Commission, since
the Commission is extending its powers beyond the framework
laid down in the EC Treaty by adopting an expanded interpreta-
tion of the essential criterion of ‘undertaking’ in Article 87(1) EC

— Annul Council Regulation (EC) No 661/2008 of 8 July
2008 imposing a definitive anti-dumping duty on imports
of ammonium nitrate originating in Russia following an
expiry review pursuant to Article 11(2) and a partial interim
to Article 11(3) of Regulation (EC)
review pursuant
No 384/96 (1) insofar as it imposes an anti-dumping duty
on the applicants, its manufacturing subsidiaries and related
companies,
and
Articles 1.2(a) and 2.2(a) of the contested regulation;

in recital 23(a)

indicated

and

(c)

— Order the Council to pay the costs of and occasioned by

these proceedings.

C 327/38

EN

Official Journal of the European Union

20.12.2008

Pleas in law and main arguments

Action brought on 13 October 2008 — Winzer Pharma v
OHIM — Alcon (OFTAL CUSI)

In support of their application the applicants put forward two
grounds for annulment. The second ground is divided into three
pleas.

(Case T-462/08)

(2008/C 327/67)

First, the applicants submit that the Council and the Commis-
sion breached Article 11(3) of the basic regulation (2) and/or
requirement by
made a breach of an essential procedural
refusing to initiate upon their own initiative an interim review
of injury and the injury margin findings in parallel with the
expiry review, and consequently made a manifest error of assess-
ment in the finding of a likelihood of recurrence of injury in the
context of the expiry review.

interim review,

the applicants claim that

Secondly,
the Council and the
Commission wrongly established the normal value for the appli-
cants in the partial
leading to its artificial
increase, and made a wrong comparison with export price, and
hence made
thereby
breaching Articles 1 and 2 of the basic regulation, committing
series of manifest errors of assessment and violating funda-
mental principles of Community law.

finding of dumping,

an erroneous

More particularly, the applicants argue that the Council and the
Commission erred in law and violated Article 2(3) and (5) of
the basic regulation as well as their legal context provided by
Articles 1 ad 2 of the basic regulation, by disregarding a major
part of the applicants' costs of production as being unreliable
and/or de facto applying a non-market economy methodology
for establishing the major part of the applicants' normal value.

Once having decided to proceed with the gas adjustment, the
Commission violated Article 2(5), second sentence, and/or made
a manifest error of appreciation and showed a lack of reasoning
by implementing the gas adjustment on the basis of the intra-
Community price of gas at Waidhaus, Germany and failing to
make further deductions.

Finally, the applicants submit that the Council and the Commis-
sion violated Article 2(10) of the basic regulation and made a
manifest error of assessment of the facts by deducting from the
applicants' export price the first independent customer selling,
general and administrative expenses and commissions in respect
of related companies, which are integral parts of the applicants'
single economic entity and integrated sales department.

(1) OJ L 185, p. 1.
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members of
the European Community (OJ 1996 L 56, p. 1).

Language in which the application was lodged: German

Parties

Applicant: Dr. Robert Winzer Pharma GmbH (Berlin, Germany)
(represented by: S. Schneller, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM:
Alcon, Inc. (Hünenberg, Switzerland)

Form of order sought

— Annul the decision of the Board of Appeal of OHIM of
17 July 2008 (R 1471/2007-1) and the decision of the
Opposition Division of OHIM of 16 July 2007 (B 809 899);

— Reject

Community
No 003679181 ‘Oftal Cusi’;

the

trade mark

application

— Order OHIM to pay all the costs of the proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: Alcon Cusì, S.A (subse-
quently, Alcon, Inc.)

Community trade mark applied for: the word mark ‘OFTAL CUSI’
for goods in Class 5.

Proprietor of the mark or sign cited in the opposition proceedings:
Winzer Pharma

Mark or sign cited in opposition: ‘Ophtal’ (No 489 948) for goods
in Class 5.

Decision of the Opposition Division: Rejection of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC)
No 40/1994 (1) in that on account of their similarity there is a
likelihood of confusion between the marks at issue.

(1) Council Regulation (EC) No 40/1994 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).